THE IMMIGRATION AND ASYLUM POLICY TOWARDS
THE EUROPEAN HARMONIZATION
1) The Amsterdam Treaty puts the basis for a communitary management of the immigration and asylum policy in the European Union countries. Within five years, it should be possible to take, in the European framework, decisions
a) not paralyzed by the veto right;
b) endowed with compulsory force;
c) subject to the European Parliament control and to the jurisdiction of the European Court of Justice.
2) It is possible to infer the perspectives for the immigration and asylum policy from the European soft law (and related preparatory acts) and from the policies actually practised by the single Member States.
The soft law concerning asylum -
a) Resolutions of the Council (30/11/1992 and 1/12/1992) on manifestly unfounded applications for asylum and on a harmonized approach to questions concerning host third countries;
b) Resolution of the Council (25/9/1995) on the burden sharing for temporary reception of displaced people;
c) Resolution of the Council (22/12/1995) on the minimum standards for the asylum procedures;
d) Decision of the Council (4/3/1996) on the emergency procedures for the burden sharing related to the temporary reception of displaced people;
e) Common Position defined by the Council (4/3/1996) on the harmonized application of the term "refugee";
f) Dublin Convention (in force since 1997);
g) Decisions of the Council (9/9/1997) on the application of the Dublin Convention -
or the preparatory acts -
h) Proposal for a Common Action (20/3/1997) on the temporary protection of displaced people;
i) Proposal for a Common Action (26/6/1998) on the solidarity related to the reception of beneficiaries of temporary protection of displaced people;
it is quite extended, anyway based on the 1951 Geneva Convention and, at least theoretically, largely accepted.
The soft law concerning immigration -
a) Recommendation of the Council (22/12/1995) on the cooperation in the application of removal measures;
b) Recommendation of the Council (22/12/1995) on the harmonization of the means to fight illegal immigration;
c) Resolution of the Council (4/3/1996) on the status of long-resident third country nationals;
d) Recommendation of the Council (27/9/1996) on the fight against illegal work;
e) Resolution of the Council (26/6/1997) on not-accompanied minors;
f) Resolution of the Council (4/12/1997) on the fight against fictitious marriages; -
it is instead vanishing, as regards "substance", if compared to the soft law concerning asylum.
However, a "Proposal for an Act of the Council", presented by the European Commission on 30/7/1997, to establish a Convention on the criteria for the admission to the territory of the European Union, gives a clear vision of the approach of the policy-makers involved in the European Istitutions (particularly influenced, of course, by the German, French and English approach).
Let us assume that, when the decisional procedure will be speeded up, as it is established by the Amsterdam Treaty, an harmonized European policy on immigration will follow the main guide-lines of this Proposal.
It is then possible to imagine the set of rules, as regards both asylum and immigration, that will be in force in Europe, in a few years, if the decision-making process will be left to the governments alone. It is possible, at the same time, to identify the main points the NGO's pressure has to concentrate on.
3) On a formal ground, the trend established by the European governments' can be summarized as follows:
a) full integration of legal immigration;
b) fight against illegal immigration;
c) great concern for the fundamental rights (right of asylum, right to family unity, etc.).
4) On an effective ground, it can be instead summarized as follows:
a) suppression of legal immigration, with the exception of the immigration associated to fundamental rights, such as the immigration for family reunification:
- immigration for subordinate employment is conditioned to the preventive establishment of a contract (the worker has to be personally called by his/her own employer);
- self-employment immigration is conditioned to the demonstration of the economic capacity of the immigrant;
- the renewal of the stay permit is conditioned to the permanence of the reqirements established for release of the permit itself;
- any possibility for in loco meeting between labour demand and supply is then ruled out, along with the possibility of carrying out little-service and occasional-work activities.
b) creation of protective barriers around the European Union:
- imposition of burdens and sanctions on the carriers of regular services carrying third country citizens who will be returned (in order to avoid such measures, the carrier refuses to board people who lack the documents usually required for the admission; as a consequence, potential refugees are the most damaged persons);
- as regards to asylum, the application of the "safe third country" principle (people coming from a Geneva-Convention third country where they could have found protection, are returned to that country).
c) fast refusal of abusive asylum applications (whose number is increasing because of what has been mentioned under point a).
5) The fact that such a convention has not yet come into force could be considered as the demonstration that there are deep divergences between the governments of these Member States and those of the southern Member States (Italy, Spain, Portugal and Greece). However, a comparison, e.g., with the Italian legislation and - above all - practice shows that, in spite of a certain propaganda, this is not the case:
a) the criteria for admission to Italy are rather relaxed with respect to the immigration for family reunification, but
- in the last twelve years, the condition of a "personal call from abroad" (a preventive job contract) has been imposed to (subordinate) workers (without any reservation list in the Italian consulates);
- self-employment immigration is conditioned to the possess of a 16 million lira-per-year income (only "rich" migrants);
- the work-seeking immigration channel has never been considered in the annual "flux decrees", even if it is theoretically allowed by the new Italian law on immigration;
- the stay permit is renovated, in fact, only in the presence of a relatively stable working activity;
b) burden and sanctions on carriers of regular services are established by the new Italian law on immigration, and the "safe third country" principle is stated by art.1 of the 39/1990 law;
c) a fast procedure for asylum applications is not contemplated by the laws actually in force (but it is included in the new bill on asylum, that the Italian Parliament is now examining). In practice, such procedure
- is effectively ruled out as regards asylum applications submitted "in the territory" (an independent judicial supervision of a removal measure is effectively ensured);
- is actually adopted, as regards asylum applications submitted at national borders (where the return measures are not judicially controlled).
6) The main consequences of this practice are
a) a very low rate of ab initio legal entries (nobody gets a job before meeting the employer directly!), with the consequent "security alarm" in the public opinion;
b) a diffused resorting of immigrants and refugees to the boat-pilot services (line vectors cannot be used, and frontier removal is more immediate than territory removal), with the consequent involvement of criminal organizations;
c) an increasing number of asylum applications from boat people (the asylum procedure, once started, is very slow and gives the stay a legal character), with a consequent mala fide presumption towards every asylum seeker.
7) In spite of an increasing formal capability in executing removal measures (on the basis of bilateral readmission agreement), the costs of this approach, which forces immigrants to stay illegally or, unproperly, as asylum-seekers, is actually reduced, in Italy, by
a) the permeability of frontiers (contracts with boat-pilots often include more than one single attempt of entrance);
b) a lot of acts of amnesty (120.000 immigrants in 1987, 240.000 in 1990, 250.000 in 1996, 300.000 (?) in 1999, versus about 25.000 lawful entrances per year on the basis of a "personal call");
c) the immediate "redemption", in the public opinion, as a consequence of the regularization of the stay by an act of amnesty: the positivity of the immigrant integration is generally recognized.
8) In summary, the European Union has to face two different kinds of migration fluxes:
a) mass influxes, caused by generalized-violence situations;
b) individual movements, mainly caused by economic reasons, generalized violence or individual persecution.
The former kind requires emergency and temporary measures. There exist problems concerning burden sharing, but no "philosophical" question arises.
The latter kind suffers the limited possibility of legal entrance based on economic reasons.
The only chance for a legal entrance (and stay) is represented by an asylum application.
There is a proliferation of abusive asylum applications.
Summary asylum procedures and restrictive interpretations of the definition of "refugee" are adopted.
Bona fide asylum seekers risk to be seriously damaged by this approach.
NGO's as well as international organizations waste their energies in the direct defence of the rights of the asylum-seeker, often invoking both a clear separation between the immigration policy and the asylum one, and the adoption of judicial supervision measures.
This approach must be reversed: legal immigration must be favoured (also in order to protect bona fide asylum seekers). In particular, spme efforts have to be made in order to support
- the work-seeking immigration;
- the position of self-employed workers involved in little-service activities and in occasional work;
- the stabilization of the stay condition of the immigrants, even when their work position is still precarious.
Thanks are due to Dr. Francesca Paltenghi for useful discussions and for a careful revision of the manuscript.